Liability Session Overview – Trip, Fall and Fly Me to the Moon

Liability Session Overview – Trip, Fall and Fly Me to the Moon

March 21, 2016. This session, recently presented by Mark Bernstein, JD, Chief Claims Officer, Carl Warren & Company, Howard Franco Jr. Esq., Attorney, Collins, Collins, Muir + Stewart, and Shaun Jackson, Director of Risk Management, Ell Pollo Loco at the Combined Claims Conference in Orange County, provides an overview of the processes you should follow if someone trips and falls in your facility and who to get involved and when.

Crucial Parts of the Investigation

-Determine if there was comparative negligence. Was there anything on the bottom of their shoes; were they wet; were their clothes torn; were their shoelaces tied, etc.?

-Take a close look at the area of the incident. Is there water; is something broken; Is there any lighting issues; is it a facility issue? If someone is responsible for taking care of the facility then there could be risk transfer and it could lessen the potential liability.

-Take photographs. Depending on the severity of the incident, the TPA will come out and take photographs but it is important to document the scene immediately after the incident happens.

-Video cameras may be expensive, but are a great investment. If you are fortunate enough to have video cameras in the area of the incident, immediately look at the footage and if the video contains important information, secure it and preserve it.

-Obtain statements from the claimant, third party witnesses, employees and independent contractors.  It is important to prioritize – interview the individuals who may be transient and are most likely to leave the scene.

-Gather documents – inspection reports, maintenance records, vendor contracts, logs, safety minutes, emails, and prior claims.

Dealing with Claimants

The goal is to show empathy and build rapport right out of the gate. Remember – – claimants are customers of the insured and the insured probably wants their continued business. It is recommended that the insured does not directly contact the claimant – have the TPA do it.

Preserving Evidence

Talk to your TPA about protecting the area or memorializing it before fixing any problems.  It may be necessary to hire an expert to do an analysis of the incident area. The TPA will also go out and take photographs and measurements. If the insured immediately runs to fix the alleged problem area, while those remedial measures are not allowed at trial, it may show there was a problem and they were at fault. The insured, TPA, and/or defense counsel should communicate and make a decision regarding remedial measures and whether to fix the area or leave it alone because it is not an issue.  It is important for the insured to train their people on preserving evidence.

Incident Form

If you don’t have one in place, get one. The form needs to be accurate and legible. A lot of retail and restaurant staff are part-timers and by the time the case gets to an attorney, these people have left that place of business. Take this into consideration and have someone in a more permanent position complete and sign the Incident Form as they could be needed if the case goes into litigation.

It is recommended to add “Confidential Attorney-Client Communication” or “Prepared in Anticipation of Litigation” at the top of the form. This shows the information is privileged. If you do not mark it to preserve it then you lose that option. Remind your staff not to distribute the page describing the incident to the guest. It is for internal use only.

Make the form as yes/no and black/white as possible. Just insert the facts; do not provide opinions. Use words such as “the guest claims they slipped and fell”. Do not include any medical findings like “knee is swollen” – you are not a doctor and are not trained to make these assumptions.

Get primary and secondary phone numbers, addresses and emails for any of the key witnesses and for the person completing the form.


It is important that the insured train their staff on what to do in the event of an incident. Your personnel are the first responders.  It is also important for an organization to properly train and educate their staff on completing the Incident Form to ensure the TPA gets accurate information for the investigation.

Dealing with the Media

Make sure the insured, TPA, and the defense counsel all have the same consistent message. There should only be one person talking to the media, and make sure the statement is factual and devoid of any opinions.

Social Media

Don’t be afraid to use social media – – it is shocking how many people post their falls or injuries on social media. There has also been an increase in extortion efforts with people threatening to post their incident or a bad review online if they aren’t given money. If this happens, bring SIU in immediately.

In conclusion, it is imperative the insured, TPA, and defense counsel work together as a team. Communication is paramount and avoids duplicated work.